thought, either express or implied. 8 Where the legislature makes use of a technical law term, its meaning must be ascertained by the common law; and therefore the definition of murder under the several statutes must be taken in the common law sense. t 2. Manslaughter. § 931. Manslaughter is the unlawful and felonious killing of another, without any malice, either express or implied. It is of two kinds. § 932. (a.) Voluntary manslaughter, is the unlawful killing of another, without malice, on sudden quarrel or in heat of passion. Where upon a sudden quarrel two persons fight, and one of them kills the other, this is voluntary manslaughter; and so, if they upon such occasion go out to fight in a field; for this is one continued act of passion. So, also, if a man be greatly provoked by any gross indignity, and immediately kills his aggressor, it is voluntary manslaughter, and not excusable homicide, not being se defendendo; neither is it murder, for there is no previous malice. u In these and such like cases, the law, deceased, 125, 135; giving deceased poison and thereby aiding her in suicide, 138; burning a house in which deceased was at the time, 126; giving deceased large quantities of spirituous liquors, &c., 168; starving, 161; forcing sick persons into street, &c., 143; neglecting to supply wife with shelter, 170; neglecting to supply apprentice with food, 161-2; killing same with over-work, 163; neglecting to supply infant with clothes, 165; striking with stones, 149, 167; manslaughter by same, 167; striking with a cart, 169; striking infant with dray (involuntary manslaughter), 176; riding over with a horse, 121; murder of bastard child by strangling, 144, 157; murder by throwing in privy, 158; by smothering in linen cloth, 159; same in Pennsylvania, by strangling, 123, 160; misdemeanor in concealing death of bastard child, under the Pennsylvania statute, by casting it in a well, 610; same where means of concealment are not stated, 184; endeavor to conceal the birth of dead child, under the English statute, 185; against captain and engineer of steamboat, for manslaughter in second. degree, in New York, 172-3; conspiracy to murder, 183. s Com. v. Thomson, 6 Mass. 134; 3 Wheeler's C. C. 319; State v. Zeller, 2 Halsted, 220; State v. Norris, 1 Hay. 429; State v. Weaver, 2 Ib. 54; Com. v. Daley, 4 Penn. Law Journ. 154; Penns. v. Honeyman, Add. 148; 3 Inst. 47, 51; 2 Ld. Raymond, 1487; 1 Hale, 425; 1 Hawk. ch. 31, s. 3, 8; Kel. 127; Fost. 256; 4 Blac. Com. 198; Lewis C. L. 394; McMillan v. State, 35 Ga. 75. t U. S. v. Magill, 1 Wash. C. C. R. 463; Wharton on Homicide, 33, 34. u 1 Hale, 449; 4 Blackstone's Com. 191; 1 Hawk. c. 30, s. 3; Parker, J., Selfridge's Trial, 158; Wharton on Hom. 35, 417; State v. Norris, 1 Hay. kindly appreciating the infirmities of human nature, extenuates the offence committed, and mercifully hesitates to put upon the same footing of guilt the cool deliberate act and the result of hasty passion. In general, where an involuntary killing happens in consequence of an unlawful act, it will be either murder or manslaughter, according to the nature of the act which occasioned it; if it be in prosecution of a felonious intent, or in consequences naturally tending to bloodshed, it will be murder; but if no more was intended than a mere civil trespass, it is manslaughter. (v.) Manslaughter differs from murder in this, that though the act which occasioned the death be unlawful, or likely to be attended with bodily mischief, yet the malice, either expressed or implied, which is the very essence of murder, is presumed to be wanting; and the act being imputed to the infirmity of human nature, the punishment is proportionably lenient. w It is no defence to an indictment for manslaughter, that the homicide therein alleged appears by the evidence to have been committed with malice aforethought, and was, therefore, murder; but the defendant, in such case, may notwithstanding be properly convicted of the offence of manslaughter. The prisoner had procured certain drugs and given them to his wife, with intent that she should take them in order to procure abortion. She took them in his absence and died from their effects. On an indictment against him for manslaughter, it was objected that he was only an accessary before the fact, and that in law there cannot be an accessary before the fact to manslaughter. It was held that he was properly found guilty of manslaughter.1 429; State v. Smith, 10 Rich. Law (S. C.) 341; Stokes v. State, 18 Geo. 17; Com. v. Drum, 58 Penn. 9; Moore, ex parte, 30 Ind. 197; Perry v. State, 43 Ala. 21; Murphy v. State, 31 Ind. 511. v 1 Hale, 449; Fost. 290; State v. Turner, Wright, 20; Jervis's Archbold, 9th ed. 386. So in Maine, State v. Smith, 32 Me. 369. w Ex parte Tayloe, 5 Cowen, 51; King v. Com. 2 Va. Cases, 78; Com. v. Bob, 4 Dall. 125; State v. Tookey, 2 Rice, S. C. Dig. 104; Penn. v. Levin, Addison, 279; State v. Travers, 2 Wheeler's C. C. 506; Com. v. Mitchell, 1 Virg. Cases, 716; Parker J., Selfridge's Trial, 158; 1 Hale, 449, 450, 466; 3 Inst. 55; 1 Hawk. c. 30, s. 2; vide R. v. Mawgridge, Kel. 124; Fost. 290; vide Lord Cornwall's case, Dom. Proc. 1678; 2 St. Tr. 730. x Com. v. McPike, 3 Cush. 181; Selfridge's case, Whart. on Hom. 417. Ante, § 560, 616. x1 R. v. Gaylor, 7 Cox C. C. 253; § 933. (b.) Involuntary manslaughter is where a man doing an unlawful act, not amounting to felony, by accident kills another.y It differs from homicide excusable by misadventure in this, that misadventure always happens in the prosecution of a lawful act, but this species of manslaughter in the prosecution of an unlawful one. Where a person does an act lawful in itself, but in an unlawful manner, this excepts the killing from the class of homicide excusable per infortuniam, and makes it involuntary manslaughter. § 934. (a.) Where a man doing a lawful act without any intention to hurt, by accident kills another; as, for instance, where a man is hunting in a park, and unintentionally kills a person concealed. This is called homicide per infortuniam, or by misadventure. $935. (b.) Homicide in self-defence, or se defendendo, upon a sudden affray, is also excusable rather than justifiable. This species of self-defence must be distinguished from that calculated to hinder the perpetration of a capital crime, which latter is not only a matter of excuse but of justification. But the self-defence of which we are now speaking is that whereby a man may protect himself from assault in a sudden broil or quarrel. This right of natural defence does not imply a right of attack. Tribunals of justice are the remedial agents for injuries past or impending; preventive defence can only be legally used in sudden and violent cases, where certain and immediate suffering would be the consequence of waiting for the assistance of the law. It is frequently difficult to distinguish this species of homicide from manslaughter in the proper legal acceptation of that word. The true criterion seems to be, that where both parties are actually in conflict at the time the mortal stroke is given the crime is that of manslaughter; but if the slayer decline any further Dears. & B. C. C. 288; 40 Eng. Law & Eq. 556. See R. v. Fretwell, 9 Cox C. C. 152. Ante, § 134. y Com. v. Thompson, 6 Mass. 134; Jervis's Archbold, 9th ed. 386; Studstill v. State, 7 Geo. 2. struggle, and afterwards to avoid his own destruction kills his antagonist, this is homicide excusable by self-defence. z. Whether, in view of the homicide statutes, an intended collateral offence is a felony or misdemeanor, is not to be ascertained by the common law classification, but by reference to the statute. a 4. Justifiable Homicide. Justifiable homicide is of three kinds : — § 936. (a.) Where the proper officer executes a criminal in strict conformity with his sentence. § 937. (b.) Where an officer of justice, in the legal exercise of a particular duty, kills a person who resists or prevents him from executing it. § 938. (c.) Where the homicide is committed in prevention of a forcible and atrocious crime; as, for instance, when the deceased was in the act of robbing or murdering another. 6 II. REQUISITES OF HOMICIDE GENERALLY. Before proceeding to consider the different grades of homicide, one or two points are to be adverted to, which apply generally : 1. There must be Proof of the corpus delicti. § 939. There must always, as has been already noticed, be clear and unequivocal proof of the corpus delicti. c 2. It must be shown that the Deceased was living when the alleged Mortal Blow was struck. § 940. It is essential in all cases to show that the deceased was living at the time when the alleged mortal blow was struck. Thus, where it was doubtful, in a case where a mother was charged with throwing her child overboard, whether it was living or dead at the time, it was held that it rested on the government to show it was living at the time, it appearing that the mother was laboring under puerperal fever, and the idea of malice being z See Wharton on Homicide, 168, Post, § 1019. 211. State v. Yarborough, 1 Hawks, 78; a State v. Smith, 32 Maine (2 Red.), § 90 b. 369. Post, § 1019. b Brac. 145; 1 Hale, 448; Com. v. Daley, 4 Penn. Law Journal, 158; c See ante, § 745-6-7-8-9; and see, also, § 683. thereby excluded. d The presumption that a person proved to have been alive at a particular time is still so, holds until it is rebutted by the lapse of time, or other satisfactory proof. e 3. The Death must be traced to the Blow. § 941. This topic has been already generally discussed. e1 At present the following remarks are pertinent: Proof that the violence inflicted by the defendant was the cause of the death of the deceased is necessary, though, as has just been seen, positive proof that life continued to the moment of the fatal blow is not always necessary. e2 If the wound is the proximate cause of the death, it is no de d U. S. v. Hewson, 7 Boston Law Reporter, 361, per Story, J.; Wharton on Homicide, 93, 94, 95, 96, 97, 98, &c. See ante, § 745, 872, &c. opponent, he simply lets it happen (lasst es nur geschehen) that the ball goes on its mission, perforates its object, and that the latter by his wound e Com. v. Harman, 4 Barr, 269. loses his life. See post, § 2634. el See ante, § 751. e2 The causal connection between death and its evident cause, says a very able German jurist (Berner, Lehrbuch der Strafrechts, 1871, p. 434), is not severed when the actor, after he has put the external agency on the track of destruction, leaves it to its natural action; as when, after putting poisoned food on his enemy's table, he waits until the latter himself takes the food; or where a skilful swimmer, by false representations and promises, entices another in deep water, and then quietly leaves him to drown; or where a midwife, after cutting the umbilical cord, does not bind it up, so that the child bleeds to death. In all such cases of withdrawal of action, after the destructive agency has been put in motion, there is no question of mere negligence (Unterlassung). For such withdrawal of action closes almost all crimes of commission; for the actor brings his train of causes just to the point where that train can be left to itself; and even when he shoots at an Nor is this causal connection severed when the mortal effect of the injury could have been averted by quicker and more skilful surgical aid, which aid was not invoked. But the wound cannot be regarded as the cause of the death when a positively mischievous surgical operation intervened to such an effect as either to produce death, or that without it death could not have ensued. Nor is this causal connection severed when the fatality of the wound is traceable either to the peculiar constitutional idiosyncrasies of the deceased, or to accidental circumstances favoring such a result; - such, for instance, as the fact that the deceased, who was struck with a sabre on his head, had a peculiarly thin skull; or that when he was thrown to the ground he fell on the edge of a precipice. But it is otherwise when an utterly foreign event, in a distinct line of sequence, intervenes, as when a wounded person in falling strikes his head against a stone. See fully ante, § 751. |